ARCHIVED: Legislative and Regulatory Updates - July 22, 1997

a Presentation Prepared for the
Annual Meeting of the
American Association of Law Libraries

in Baltimore, Maryland July 22, 1997

by Robert L. Oakley

Good afternoon. I am very pleased to be here at the annual legislative update session. We've been doing this for a number of years now, and it's really a good opportunity for us to tell you about some of the issues that we've been involved with over the last year as well as an opportunity for you to tell us about the issues that are concerning you -- perhaps issues in your state that we may not be so aware of.

As ususal, we will be talking about a range of issues. Mary Alice and our guest will be talking about access to government information and some other related issues, I will talk about citation reform, copyright issues, and a new one this year, licensing.

But first a general word about this new Congress

The new Congress, which began in January of this year is very different from the last one. As you probably remember, the last Congress began with the Gingrich revolution and the Contract With America. On the Democratic side, the administration was pushing its "Reinventing Government" agenda. The result of this combination was that a great many ideas were thrown out without sufficient consideration of the implications, and those of us who work on these issues had a very difficult time keeping up. It was a scramble from the opening gun. By this time in that Congress, for example, we were already dealing with three completely different proposals to kill off G.P.O. or otherwise change the way government information is printed and distributed, without regard to the consequences. Fortunately, most of those ideas just didn't stick.

The new Congress has a completely different dynamic. All of the same issues are still being discussed. But much more thought and consideration is going into how they should be resolved before a specific proposal emerges. The result is that although we are as busy as ever, we don't yet have very many specific bills to which we will be able to direct you. Some of them, as you will hear, are just now beginning to emerge, either as draft bills, or in a few cases, bills being introduced for the specific purpose of garnering reaction to an issue. No doubt, the session will heat up after the summer break and more of these bills are mature enough to introduce.

Before I Move into Talking About Legislative Initiatives, I should bring you up to date on Citation Reform

As you may remember, a proposal to support a medium neutral citation system substantially the same as the one adopted by AALL, was adopted by the ABA at its meeting last August. In response to the action of the ABA, the U.S. Judicial Conference began a process to evaluate whether the courts should adopt the proposal. First, they sought the opinions of judges, court personnel, lawyers, and the public on the issue. An overwhelming number of the judges who responded to the survey opposed the adoption of the proposal, while responses from lawyers and the public were generally in favor of the proposal. That split of opinion puts the committee that is evaluating the proposal in a difficult position. They sought further input by holding a hearing on April 3 of this year in Washington, D.C.

Working with the chair of AALL's Citation Committee, Marcia Koslov, I drafted a statement for presentation to the panel of judges and appeared on behalf of AALL. My points to the panel were very simple. Basically, I pointed out to the judges that their opinions were now available in many different ways: in books, on CD ROM, on their own bulletin boards, on the Internet. In addition, I pointed out that this widespread availability of judicial information made it more accessible to the general public and less costly for members of the bar, thus potentially lowering the cost of justice in America. I went on to say, though, that for this information to be useful, there needed to be a simple mechanism by which a reference to it could be made, without also having to make a reference to another format such as print. I explained to the judges that the ABA/AALL proposal would accomplish the goal, and would be neither difficult nor expensive to implement.

The panel of judges seemed, frankly, both interested and sympathetic to the goals of the proposal. But I think they were also troubled by the almost total rejection of the idea by their colleagues. Their questions focused on the practical implications of the proposal. It seems relatively clear that more work remains to be done with the judges themselves, with their clerks, and with the Reporters of Decisions of the various courts. Those are people that we in Washington have a difficult time reaching.

Copyright

As you will remember from our discussions over the last several years, copyright and other issues related to intellectual property have now re-emerged as a central issue, the outcome of which will affect our activities for the rest of our careers. For many years after the passage of the 1976 Copyright Act, there were not a great many intellectual property initiatives that we had to worry about. But the development of electronic means for the dissemination of information, especially open systems like the world-wide web, has changed all that, because copyright owners have become very nervous about the potential for large-scale infringement in the electronic environment. I will discuss briefly three areas where the issues have been ongoing in the last year: Copyright and the NII, Databases, and Fair Use.

Copyright and the NII.

Last year at this time, we were very concerned about the proposed bill that would have amended the law to extend the owner's rights to include electronic transmissions, without also making clear that use rights also carried forward into the electronic environment. As the last Congress wound down and it became clear that the bill wouldn't pass, the focus of attention shifted to Geneva, where substantially similar proposals had been put forward for discussion at the meeting of the World Intellectual Property Organization last December.

WIPO did conclude two treaties, but what emerged from the process was a lot better than we thought it would be going in.

The treaty explicity recognized the need to maintain a balance between the rights of creators and the larger public interest and permits member countries to enact reasonable limits on the rights of creators in the public interest.

The negotators deleted language that would have treated temporary reproductions as copies, and effectively outlawed browsing on the Internet.

The Conference Record contains an interpretive statement to protect online service providers.

As a result of these changes and others, the Conference adopted a reasonably balanced treaty, but preserved the largest issues for discussion at the level of national legislatures. As of now, we are waiting for the Clinton administration to transmit the treaty to Congress for ratification. The interesting issue will come up when we see how the administration has drafted the implementing legislation. If it looks like last year's bill, there will be cotninued heavy debates. If it reflects a more balanced approach, then it might be fine.

Databases.

The proposal to protect databases as a new sui generis form of intellectual property also failed to pass in the last Congress, but it, too, went forward to Geneva for further consideration as an international treaty. This issue is one that at first did not attract much attention, but it has now raised considerable concern -- especially in the scientific community -- as the implications have become known. In Geneva, it was realized that there wasn't yet enough of an international consensus on the database issue for it to go forward as a proposed treaty, but the delegates agreed to convene additional meetings on the topic. The first one was held in March, and they concluded that they were not even ready yet to convene a Committee of Experts to work on a draft. So they decided that their next meeting would continue the information gathering stage to find out the views of the member countries and what they were doing domestically about the issue.

In the meantime, the issue is still very important in the United states, although it is not yet back on the front burner. Because of the concerns raised in the last Congress, the proponents of database protection -- of whom, by the way, the Information Industry Association in general and LEXIS and Westlaw in particular, are the leading voices -- have regrouped to see if they can find a way to respond to the concerns, and a new bill has not yet been introduced in Congress. In the meantime, the Register of Copyrights was asked by Senator Hatch to do a study on the issue. We are told that that report will be out soon -- sometime in the next few weeks -- but that it will not make any recommendations. Nonetheless, the issue remains important to its proponents, and I will not be surprised to see a bill introduced in the early fall.

CONFU

In the meantime, the Conference on Fair Use, which was created to see if interested parties could craft some guidelines on the fair use of materials by librarians and educators in the electronic environment, probably ended this past May. The Conference did develop three sets of guidelines which were sent out for comment and endorsement. These proposals included Guidelines on the Use of Multi-media Works, Guidelines on Distance Learning, and Guidelines on Digital Images.

I think it is fair to say that none of these guidelines received broad-based consensus of support from the participating organizations. The multi-media guidelines were heavily promoted and supported by a number of industry groups, but none of the largest educational and library organizations. The distance learning guidelines also received some support, including from AALL and SLA, but also did not achieve a broad consensus. The Digital Image Guidelines had some problems, and it was decided that a period of field testing would be useful in their case. That testing is underway now.

Everyone who participated agreed that the process had been extremely useful and probably laid the groundwork for future discussions. The inability to reach agreement, in large measure, simply reflected the fluidity of the electronic environment today and the reluctance of the participants to agree to guidelines when there are so many unknowns.

Although the formal CONFU process has probably ended, they did set aside a date next spring for an additional meeting if events made such a meeting seem useful. In the meantime, the Digital Image Guidelines will be tested, and the groups that have been discussing Distance Learning will continue to meet on their own. If either or both of those groups makes progress during the year, then a follow up meeting will be held next May. If not, then CONFU is over.

On the assumption that CONFU has ended, the library community is turning its attention to preparing its own guidelines -- best practices for the help of its members. AALL is ahead of the curve on this, as a set of Guidelines on Electronic Fair Use of Copyrighted Works was endorsed by the Board at this meeting. Those guidelines will be widely disseminated by the Copyright Committee in the coming months.

Licensing

The new issue that has heated up in the last year and promises to get hotter in the next few months is the issue of licensing. More and more, librarians have come to realize that in the electronic environment, they will often be acquiring information not by purchase, but by license. The terms of the license agreement may restrict the rights of the library, and could even limit the rights of their users. The way the license is crafted, therefore, is critical to whether or not our users will be able to use or copy the information in the ways that they have come to expect.

In the past year, there have been two very different initiatives underway on the license issue. The first is an effort coordinated by the coalition of five major library associations -- known as the Shared Legal Capability -- to create a statement of principles for libraries to use as they think about the issues. The purpose of the statement is twofold: to help libraries as they negotiate a license and to make information providers aware of the issues that are important to libraries. The draft statement of principles is under review now by AALL's Copyright Committee and may be referred to the Executive Board by the conclusion of this meeting.

Even while this effort has been going on within the library community,outside our community, there is an effort underway to rewrite the legal rules of the road for the licensing of information. There was an excellent program on this issue on Monday morning. For those of you who weren't there, the Uniform Commercial Code, Article 2 governs transactions for the sales of goods. This new effort would add a new Article 2B to the UCC, which has been adopted in all 50 states, covering transactions for the licensing of information. The draft has been developing for a number of years now through a committee co-sponsored by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. Eventually, it is anticipated that Act would be transmitted to the states for their adoption. The drafting committee has had substantial representation from the Industry, but until now, no representation from the library community and very little representation from consumer groups.

If adopted by NCCUSL and then adopted by the various states, this new commercial law would establish the default rules for licensed information and in such cases, the licenses could largely supplant the relative balance now in place under the copyright act. The way the draft is worded, in fact, the definitions are broad enough that it could even apply to books which might be acquired by license, rather than by purchase.

One of the most significant provisions of this draft is that it would specifically validate both shrink-wrap licenses and other mass-market licenses, such as a license agreed to by clicking a button on an Internet site, regardless of whether or not the licensee had seen the license or knew what they were agreeing to. Under the terms of such a license, an individual could waive their fair use rights and a library could give up its rights to circulate material or engage in interlibrary lending transactions.

The potential for valid license provisions such as these agreed to by clicking a button, have caused some of us great concern. Most people recognize that we will be acquiring more and more information by license. But the way in which that license agreement is arrived at -- was it fairly negotiated? -- was there a meeting of the minds? -- were the important terms specifically brought to the attention of the parties? -- was there a specific manifestation of assent before basic rights were given up?-- These are some of the key issues lurking in this new Article of the Uniform Commercial Code.

I have opened up a discussion with other members of the library community, the ALI Committee, and the Industry on how the statute might be drafted to better reflect the interests of consumers of information and better protect their rights under the copyright act. Yesterday, a few of us met with the Reporter who is drafting the new statute. Unfortunately, it gets complicated. Some members of the industry do not believe that database protection is a good idea. They are willing to oppose the database bill, so long as they can get the protection they need under a license agreeement. If, for some reason, they are not able to get a license agreement to their liking, then these companies might well join the ranks of those seeking a new form of intellectual property protection for databases.

These discussions are now on-going. It is too early to predict the outcome, but big players in the industry -- such as microsoft -- are behind the licensing proposal. It remains to be seen how much of a difference we can make, but there is no doubt that however it comes out, it will affect our future.

So that's it. Three very interrelated sets of issues: copyright, database protection, and licensing. All of these issues revolve around the same basic problem -- how to define or redefine the rights of information owners and information users in the information age.